Limitation by deed of equitable estates in land.

(u) Stat, 27 Hen. VIII. c. 10.

(x) Above, p. 172.

(y) Re Ethel and Mitchells and Butler's Contract, 1901, 1 Ch. 945, 948; below, Chap. XIII. Sec. 2.

See Re Whiston's Settlement, 1894, 1 Ch. 661, and the cases then cited: Re Irwin, 1904, 2

Ch. 752; Farwell, E. J., Thursby's Settlement, 1910, 2 Ch. 181, 188, 189.

(a) See Shep. Touch. Preston's ed.) 106: Preston on Estates, ii.

64 - 66; Hayes on Conveyancing, 91, 92, 5th ed.; Lewin Trusts, 95, 6th ed.; 117. 10th ed; Wms. Real Prop. 165, 13th ed. 184. 185, 21st ed.; Re Tringham's Trusts, 1904, 2 Ch, 247; Re Irwin. ib. 752, 764; Re Olwer's Settlement, 1905, 1 Ch. 191;

Farwell, L. J., Re Thursby's Settenent, 1910, 2 Ch. 181, 189.

Every vendor of land, besides conveying the land sold to the purchaser, is bound, unless it appear from the contract that he was selling as a trustee or mortgagee (b), to enter into the usual qualified covenants for title. That is to say, he must covenant with the purchaser that he has power to convey the land as expressed in the conveyance, that the premises shall be quietly enjoyed and that the same are free from any incumbrance, and also, if the property sold were leasehold, that the lease is valid, the rent has been paid and the covenants performed: but all these covenants are limited to indemnifying the purchaser against disturbance by reason only of some act, omission or sufferance of the vendor himself, or of any of his predecessors in title subsequent to the last sale of the land or the last conveyance thereof for other valuable consideration whereon proper covenants for title were given (c), or of any persons claiming under him or them. So that if the vendor purchased the land himself, he will covenant against disturbance by reason only of his own acts or those of persons claiming under him. And the vendor must also covenant for further assurance by himself or any one claiming under or in trust for him or any such of his predecessors in title as aforesaid (d). And although, as we have seen (r), a contract to sell land is an absolute undertaking, express or implied, to sell the fee simple or other estate specified, free from incumbrances, it is settled that, in the absence of express stipulation to the contrary, a vendor of land is not bound to give, in the conveyance of the land, any manner of warranty of title other than is afforded by these qualified covenants (f). And no other warranty of title (g) is implied on a sale of land made by one, who assumes to deal therewith as owner, and completed by conveyance and payment of the purchase money (h). Indeed, under the present law, no warranty of or covenant for title is implied by the mere conveyance, on sale or otherwise, of any land (i); except only in the case of a demise for a term of years (k), and in certain cases of statutory conveyance where the word grant by force of some Act of Parliament implies covenants for title (l). But, as we have seen, on an executory agreement to sell land the vendor is bound to show a good act to incumber the property sold (s). But if a trustee enter into a contract to sell land, without disclosing his fiduciary character, the purchaser will, it is thought, be entitled to the same covenants as if the vendor were the beneficial owner (t). This should not be forgotten when it is desired to effect a sale by trustees without disclosing the trust. 80 a mortgagee selling as such under his power of sale is only bound to covenant that he has not incumbered (n), but would, it is thought, be liable to give the usual vendor's covenants as to title if he sold under an open contract. Where land held on a simple trust or in mortgage is sold by or by the direction of the cestui-que-trust or the mortgagor or other person entitled to the equity of redemption, he must enter into the vendor's covenants for title, and the trustee or mortgagee concurring in the sale is only bound to covenant against his own incumbrances. And on a sale by mortgagor and mortgagee, it is the invariable practice to insert or incorporate in the conveyance the usual qualified covenants for title by the mortgagor, notwithstanding that these appear to supersede and to deprive the purchaser of the benefit of the absolute covenants for title entered into by the mortgagor on the occasion of the mortgage (x). If laud be sold by a trustee in bankruptcy professedly selling as such under the power of sale given to him by statute (y), he can only be required to covenant that he has done no act to incumber. It has, however, been the practice to require the bankrupt himself to concur in the conveyance and to covenant for title: but this cannot be insisted on, and the bankrupt's covenants are of little or no value (z). Where lands are sold by or by the direction of one entitled to some estate therein, with the intention that they shall be conveyed under some power exercisable by himself or by others with his consent (such as the power of sale given to a tenant for life by the Settled Land Act, 1882 (a), or the power of sale usually limited before that Act to the trustees of real settlements to be exercisable with the tenant-for-life's consent), he is bound to enter into the usual covenants for title (b). But where such person is tenant for life only and his covenants for title extend to the acts, etc. of any of his predecessors in title (c), it is the regular practice to limit these covenants by a proviso saving him from liability, as regards the remainder or reversion expectant on his life estate, for any other acts or defaults than those of himself or his own heirs or persons claiming under or in trust for him or them (d). And it would probably be held, where the nature of the interest of a tenant for life so selling or consenting to a sale appears from the contract, that he is entitled to insist on this restriction of his liability. But it is thought that this is not the case where he has sold as absolute owner. Thus, if one so entitled sold by an open contract, which he proposed to carry out by a conveyance by himself under the Settled Land Act, 1882, or by trustees under a power of appointment exercisable with his consent (e), it is submitted that he would be bound to give vendor's covenants for title unrestricted by any such proviso. The case is analogous to a sale made by a trustee without disclosing his fiduciary character (f). If lands be vested in trustees on a special trust for sale, and they sell as such trustees, their receipts being good discharges (g), it does not appear that the purchaser is in strict right entitled to require the persons beneficially interested in the purchase money to join in the conveyance or to covenant for title (h): but it has been the practice of conveyancers to insist, if such persons were absolutely entitled and sui juris, that they should give the usual vendor's covenants for title as regards their shares (i). It is, however, usual on sales by trustees to stipulate expressly that the concurrence of the beneficiaries shall not be required and the purchaser shall be entitled to no other covenant than the trustees' covenant against incumbrances (k). Where lands belonging to one absolutely are sold by order of the Court, he must enter into the same covenants for title as if he himself had sold them; but where on such a sale the legal estate is in trustees and a good title to the equitable interest is given by virtue of the order for sale (l), the purchaser cannot require the concurrence in the conveyance of the persons beneficially entitled, or oblige them to covenant for title (m).